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Guarantor being taken to Court

14-02-2019, 16:17 PM

Hi - I have come across this website after looking for some online advice regarding my position as a guarantor.

I'm sorry of this is going to be a bit long winded but I am getting myself in a bit of a panic as I have received a date to attend my local Magistrates Court along with my sister-in-law and her husband (the tenants).

Last summer my SIL approached me to be a guarantor for her as she was living in a 2 bed council flat with her husband, four children and dog. She had been trying to get a bigger council property but had no luck - she was desperate to move and had found a house she liked through a letting agents. She approached me as she was told she needed a guarantor who owned their own home and her mum and other siblings all live in rented accommodation. I really did not want to commit to such a big commitment but of course she was full of promises of how she would be able to afford the £795 rent each month and that the kids deserved to live somewhere with a garden etc. I also had my MIL gently persuading me that everything would be ok that my SIL's husband was a tradesman who could easily cover the cost of the rent etc etc.

I reluctantly agreed but did forewarn my SIL that if the LA carried out a credit check, I probably would not pass as I have rather a lot of credit card debt.

Any way I heard very little about the possible move over the next couple of months until I received a message from my SIL with the Guarantor Application Form. She asked me to complete the form and send it to the LA, which I did via email on the 29th August. In the accompanying email I wrote

Please find attached a completed guarantor application form in connection with the above named prospective tenants.

I have signed this guarantor form on the proviso that it only covers any rent arrears that may occur and no other costs whatsoever and that after a period of 6 months from the start of the tenancy, I will not be willing to stand as guarantor for any further amount of time.

Within a few minutes I had a reply from the LA stating:

Thank you very much. We now need your Passport please and proof of ownership. Could you provide a Land Registry Document showing you own your home please?

The following day I received an email from the LA stating:

Thank you for your email which I have just read in detail. The Guarantor agreement would cover an y rent arrears and damage. Utility bills like Council Tax, Gas and Electricity and water are all bills in their own name and should any debts arise the Utility Company will chase them directly.

The Guarantor agreement would run for the whole term of the tenancy. Obviously if you wished to withdraw your support then the tenancy would not go ahead but we need to know urgently as we have to have a contract signed with you before they move in but do need your Passport and proof of home ownership as requested in my email yesterday.

I look forward to hearing from you.

I voiced my concerns to my SIL again about having to be a guarantor for longer than 6 months but she assured me that after the 6 months I could say I no longer wanted to be guarantor and she would get someone else to do so!!!!! I desperately wanted to say I wouldn't stand as guarantor but as I was their only hope of getting into this new house I stupidly proceeded with this application and just hoping I failed the credit check then I could at least say that I had tried for them.

On the 4th September I received an email from the LA

Could you please contact me regarding you being the guarantor for the above tenants. You sent the application form in but haven’t responded with the items I asked for.

Can you please confirm if you are undertaking this commitment or not.

I look forward to hearing from you.

So the following day, Wednesday 5th September, I sent along a copy of my passport and proof of ownership of my house. Within the hour I had received an email from LA

I will email the Guarantor Agreement over to you but could you please sign and get your signature witnessed by someone who isn’t a family member and email it back to me urgently. I am hoping they can move in on Friday but this must be done first before we arrange the date.

That evening I received an email with the Guarantor Agreement attached ready for me to sign and return.

Could you please read through the agreement above and sign it. It must be witnessed by someone who is not a family member.

Please return it to us as soon as possible.

Kind regards

Upon reading the GA I noticed that point 8 had said that I had been given a copy of the Tenancy Agreement, which I had not. The following morning I therefore emailed the LA the following:

I have been reading through the Agreement and it states in point 8 that I have been offered a copy of the tenancy agreement. I haven’t been, but is this something I can have a copy of before signing the guarantor agreement please? I would like to know how much the rent is and the length of the tenancy.

What deposit are ****** and ***** providing?

I assume their rent is being taken directly out of their bank account?

Once I have read through their tenancy agreement, I will hopefully be in a position to sign and return my guarantor agreement later today.

There was still the pressure from my SIL to get this sorted as they were still being promised they could move into the house the next day!!!!

The LA replied that afternoon with:

We haven’t done the tenancy yet but I am sending you a pro forma which is attached.

The rent is £795 per calendar month and yes it will be paid by standing order. The tenancy will be a 12 month AST with a 6 month break clause so that they can leave giving two months notice or the Landlord can give them two month’s notice. After the 12 months it then goes onto a periodic tenancy.

Once approving the Tenancy can you please send the Guarantor agreement back signed.

Many thanks

Foolishly I did what was asked of me and I signed the GA and had my colleague witness it, I then sent it back via email to the LA.

My SIL and her family then moved into their new house and that is where my nightmare begins.

Trouble started when their first months' rent was due and they underpaid their rent by £295 plus paid it about two weeks late!!! Next month they paid their whole months rent but still owed the shortfall from the previous month. Since that time they have never paid any further rent and no owe another 3 months rent.

I have been talking to their Landlord by phone and via email and we obviously both want them out of his house as soon as possible. Once her served a Section 21 and Section 8 on them I said I wasn't in a position to pay the outstanding arrears but also that I wouldn't pay anything at all so that the eviction could take place quicker and then once they had left the house I would try my best and pay the arrears either by using credit cards or a holiday mortgage if my bank allowed it. By the time we go to Court there will be around £3,000 owing.

Truthfully I have no idea how I will pay this money, my relationship with my SIL has completely broken down and all I seem to get from her is abuse. I am so annoyed with myself for getting into this and am worried that by adding to my already fair amount of debt I will start to struggle with my own mortgage etc.

Do you think that the Magistrates will enforce that I have to pay the arrears? From reading other posts on this forum I feel that a number of errors may have been made by the LA:

1. I did not see a copy of the TA before signing the GA;
2. I was pressurised by the LA to get everything signed and submitted so that my SIL could move into the house at short notice;
3. The GA does not mention the word Deed at all in it;
4. I have absolutely no funds to pay these arrears without getting myself deeper into debt;
5. Was the LA supposed to credit check me, apart from my employers name and my monthly wage, no questions were asked about my outgoings, how many dependants I have. My wage is £20,450 per year and the rent was £795, surely this also seems disproportionate and highly unlikely that I would have been able to pay the £795 per month

A couple of questions.
What have you been given that says you have to attend a magistrates court?

First of all, housing issues are normally dealt with by a county court, and, at this point, the landlord (or agent) should be obtaining possession, which doesn't involve you.

Without seeing the guarantor agreement it's not easy to know what you might be liable for, but usually a guarantor would only be (even potentially) liable if the tenants haven't met their obligations.
If you were being asked to pay, you would have, before it got this far, been asked to pay.
And if the landlord/agent were considering legal action against you, they would have served some kind of letter before action.

But again, that kind of debt issues aren't solved in a magistrates court.

1 - if the pro-forma agreement you were sent was representative of the actual one signed, yes you did.
2 - that's helpful, because it didn't allow you to seek independent legal advice, which should have been recommended to you.
3 - that's also helpful, because it may not be a valid contract if you paid or received nothing for the agreement.
4 - currently your position is that you don't owe anything. The people who owe the money are the tenants.

You might find it cheaper to engage a solicitor to argue about the validity of the guarantor agreement than to acquire the tenant's debt.

When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

Comment

I believe the consideration here is that the tenancy was granted - so the contract is valid as the tenancy agreement was clearly signed after the guarantor agreed to proceed. It's actually a pity that you asked to see the tenancy agreement as if you hadnt seen it until after the tenancy agreement was signed there may have been no valid contract.

You were not advised to get legal advice and not given an opportunity to do so - your best argument.

Your SIL is likely to fight the eviction as they will have nowhere else to go. That means that your potential debt is continuing to increase.

They cant get blood from a stone but if the landlord does chase you for the debt the court could put a charge on your home and/or require you to make payments each month at a level you can afford.

I'm sorry to give you bad news, you do need urgent legal advice and you will need to show a copy of exactly what you signed. . Check any household insurance policies you have to see if they include legal cover.

Comment

jpkeates A couple of questions.
What have you been given that says you have to attend a magistrates court? - my mistake it is the County Court I have to attend. The paperwork I have been sent from the Court is a Claim Form for Possession of Property. It has my SIL, her husband and myself down as the defendants. The Defence Form doesn't really seem to be aimed at me so I am a little confused as to whether to fill it in. It does ask about money I have to pay out and dependants etc so I may just fill in those parts so that the Court are aware of my financial position!!!

JK0 £3000 seems good value for getting this sponger out of your life. - I couldn't agree more with you.

Lawcruncher It would help if we can see the guarantee in full - names and addresses can be omitted. I have (hopefully) included two pictures showing the GA

buzzard1994
It's actually a pity that you asked to see the tenancy agreement as if you hadnt seen it until after the tenancy agreement was signed there may have been no valid contract. - Does it not matter that I didn't see the TA with regard to their tenancy - I was sent a pro forma, which did differ in parts from the final signed TA. I actually asked for a copy of the signed TA from the LA about a week after they had moved in as I still had not been sent a copy from the LA.

Comment

It was your responsibility to ensure that any default by your SIL was affordable to you. Any credit check is not to protect you but to ensure that the landlord will not lose out by bankrupting you or having you pay back in small amounts over many years.

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Comment

Should the LA not have checked if I had surplus funds each month to pay the £795. All I was asked was my income per month. There was no question of how much my mortgage was, any credit card/loan debt, Council Tax, utilities etc etc. If they had it would have been quite obvious that my £1400 wage each month would not cover the £795 by far. I was not asked if I had any dependants and if they had carried out a credit check I am pretty sure that I would not have come back as credit worthy and therefore they could have declined me as a Guarantor (this is what I was hoping would happen). The LA should have a duty of care to the LL that the Guarantor will be in a position to pay if the tenants default on their rent payments.

Comment

Any duty of the agent is to the landlord, not to you. Owning the house means that they take the default, plus interest, from you when you sell the house, so their cash flow position may not be good, but their balance sheet position is secure.

Comment

The LA should have a duty of care to the LL that the Guarantor will be in a position to pay if the tenants default on their rent payments.

They probably do, but that duty is owed to the landlord, not the guarantor.

Anyway.
That agreement is going to be tough to enforce if you stress that it isn't a valid contract. There is no consideration for the agreement, other than your promise to do something in a situation you believed was not going to happen.
So get some legal advice as soon as you can - it will be cheaper than paying the landlord/agent.

Did the landlord/agent make written demands for payment of rent, and was that after they had demanded that amount from the tenant?

I would query with your solicitor about attending the court session at all. If it is for repossession, you are not involved. If it for repossession and rent arrears, I am not sure that you should be involved either. Any claim against you should be a separate matter, once the tenant's debt is agreed.

When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

1 like

Comment

Thanks jpkeates I did receive a 7 day demand for overdue rent from the LL via email and post, which also notified me of a Section 8 and Section 21 notice being served on the tenants. I replied to his email explaining that I could not pay the money within 7 days. We later spoke and it was understood that I would not make any payment before they were evicted as we both wanted them out of the house as soon as possible and if I was to make a part payment before the Court hearing the Section 8 could not go ahead as they would no longer be over 2 months in rent arrears.

Prior to me receiving the 7 day demand he had attempted to get the money owed from the tenants and was always promised it would be paid at a later date, that some money would be paid by such and such a date and then of course that date came and went and not one penny had been paid by the tenants. Lots of false promises

Comment

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